O'Hara v. Lamb Construction Co.

(4)

v. Railroad, 74 Mo. 302; Barr v. Armstrong, 56 Mo. 589; Caldwell v. Stephens, 57 Mo. 595; Glover v. Railroad, 129 Mo. App. 575. (4) Plaintiff's instruction numbered 2 is erroneous, as it assumes that the rope "was old, weak and worn out," which was one of the issues in the case. Abstract, p. 65; Baker v. City of Independence, 106 Mo. App. 510; Waters v. Kansas City, 94 Mo. App. 416; Gessner v. R. R. Co., 132 Mo. App. 584; Kansas City Southern R. Co. v. Williams, 111 S. W. 196. (5) Plaintiff's instruction numbered 5 does not correctly declare the measure of damages in this case, and, further, there is no evidence in this case on which to base same. Abstract, p. 66; McGowan v. St. Louis Ore & Steel Co., 109 Mo. 518; Calcaterra v. Iovaldi, 123 Mo. App. 354. (6) The court erred in not rebuking counsel for the plaintiff for his improper and prejudicial argument herein. Abstract, pp. 67-68; Cyc, Vol. 38, p. 1487; Jones v. Murray, 167 Mo. 25; Neff v. Cameron, 213 Mo. 350; Koch v. Hebel, 32 Mo. App. 103. (7) The damages recovered by the plaintiff are grossly excessive, since there was no evidence whatever of pecuniary loss on the part of the plaintiff. Bagley, Admr., v. St. Louis, 268 Mo. 264.

T. J. Rowe for respondent.

ALLEN, J.-This is an action prosecuted under sections 5426 and 5427, Revised Statutes 1909, by the widow of Michael O'Hara, deceased, to recover damages for the death of said Michael O'Hara alleged to have been caused by the negligence of the defendant corporation. The cause has been twice tried below, and this is its second appearance in this court. The first trial resulted in a judgment in plaintiff's favor, in the sum of $5000, which was set aside by the trial court. Upon plaintiff's appeal that ruling was affirmed by this court (see opinion of REYNOLDS, P. J., in O'Hara v. Lamb Construction Company, 197 S. W. 163). A new trial resulted in a verdict and judgment for plaintiff in the sum of $7500 from which the defendant prosecutes this appeal.

O'Hara v. Lamb Construction Co.

On May 14, 1914, Michael O'Hara was in the employ of the defendant performing certain duties for it in connection with the operation of a quarry about two hundred feet in depth. He was standing upon a ledge about sixteen feet from the bottom of the quarry, and engaged in "steadying" a box filled with rock which was being hoisted out of the quarry by means of a steel cable, when the cable broke causing the box to fall upon him, whereby he received injuries from which he died on the same day. The facts will be found more fully set forth in the opinion on the former appeal, referred to above. The defendant is charged with negligence in furnishing and using a cable, for the purposes aforesaid, which was "old, weak, wornout and unsafe for use," which defects were known to it; and the evidence abundantly supports these averments of the petition.

I.

The first point made by appellant's learned counsel is that the petition wholly fails to state a cause of action in that it does not aver that plaintiff sustained loss or damage by reason of the death of her husband. It is true that plaintiff does not in direct terms plead that she sustained a pecuniary loss in the premises. The petition begins by averring that "plaintiff is the widow of Michael O'Hara, deceased," and then proceeds with allegations as to the facts and circumstances surrounding the death of Michael O'Hara and the alleged negligence of defendant, concluding with a prayer for judgment.

In support of the argument of appellant's counsel that the petition is fatally defective in the respect mentioned, we are referred to language in the majority opinion of the Springfield Court of Appeals in Johnson v. Mining Co., 171 Mo. App. 134, 156 S. W. 33, where (1. c. 143) it is said: "The courts of this State have uniformly held that sections 5426 and 5427 are in no sense penal, but purely compensatory. For that reason the husband or wife suing under this section must show the pecuniary loss and the damages must be pleaded

O'Hara v. Lamb Construction Co.

and proved in order to recover; so, also, must the minor child or minor children show a pecuniary loss; and much more so must the father and mother of a minor child or the father and mother or brothers and sisters of an adult show this pecuniary loss, because as to the last two classes the presumption of law which attaches to the husband or wife or to the minor children does not obtain."

As to this language we need only observe that in so far as it purports to state what is necessary, as matter of pleading and proof, in a case brought under this statute by a widow for the negligent killing of her husband, it is obiter dicta and affords no authority for appellant's contention. In the Johnson case the suit was not one by a widow, but was prosecuted by an administrator, and there was no allegation in the petition of the existence of next of kin. The case went on certification to the Supreme Court where the conclusion reached by the majority of the Springfield Court of Appeals, affirming the action of the trial court in sustaining a demurrer to the petition, was approved. [See Johnson v. Dixie Mining Co., 187 S. W. 1.] But it by no means follows that the language quoted supra has the approval of the Supreme Court.

Appellant also relies upon language used in the opinion of the Supreme Court (Division No. 2) in Smelser v. Railroad, 262 Mo. 25, 1. c. 42, 170 S. W. 1124. In that case, as in the Johnson case, the suit was one by an administrator, and the question now before us was not therein involved. But irrespective of this, it is to be noted that the language of the opinion upon which appellant relies is, in any event, but the expression of the individual views of the learned author thereof; for it will be observed that in that portion of the opinion the other members of that division of the Supreme Court did not concur. Consequently, while we have much respect for the individual views of the learned member of our Supreme Court who wrote the opinion in the Smelser case, we are in no way bound by the language thus employed.

1

O'Hara v. Lamb Construction Co.

It is quite true that under section 5427 the damages recoverable are such as the jury may "deem fair and just, with reference to the necessary injury resulting from such death, to the surviving parties who may be entitled to sue," etc; and that the plaintiff in such action must bring himself within the purview of the statute. We are of the opinion, however, that where the suit is prosecuted by the widow, as here, a petition which, so far as concerns the pecuniary loss suffered, alleges merely plaintiff's relationship to the deceased, is not fatally defective at least after verdict. Whether such a petition is demurrable we need not say. It was the legal duty of Michael O'Hara to support his wife and minor children; and the law, we think, will imply pecuniary loss to the plaintiff arising from the relationship of the parties. [In this connection see Cooley v. Dunham; 196 Mo. App. 399, 1. c. 407, 195 S. W. 1058.1 By reasonable inference and fair intendment the petition before us may be taken as charging that plaintiff suffered the loss of such support by reason of the negligent killing of her husband. And it is a trite doctrine that where, as here, a petition is not attacked below, either by demurrer or objection to the introduction of evidence, as failing to state a cause of action, every reasonable inference will be indulged in its favor on appeal, and it will be held sufficient to support the judgment if by fair intendment it impliedly states a cause of action.

It is contended by appellant's learned counsel that the petition is fatally defective in that it makes no reference to the minor children of plaintiff and deceased, whereas the evidence disclosed that the deceased left surviving him three young children born of his marriage with plaintiff. But we perceive no merit in this contention. By the terms of the statute the widow is entitled to prosecute the action within six months after the death, though there be minor children. And plaintiff instituted the suit within the required time, and thus appropriated the cause of action. If, as a matter of good pleading, the petition ought to have contained appropiate allegations as to the existence of minor

O'Hara v. Lamb Construction Co.

children, as bearing upon the pecuniary loss suffered, which we need not decide, the lack of such averments does not render the petition now vulnerable to attack as for a total failure to state a cause of action.

It is further contended that the petition is fatally defective for the reason that it does not in terms allege that the action was brought within six months after the death of Michael O'Hara. This contention is obviously without merit. The record shows that the suit was instituted on June 18, 1914; and the petition alleges that Michael O'Hara came to his death on May 14, 1914. Manifestly this suffices to show that the suit was brought in ample time; and the record discloses that at the trial below counsel in open court admitted "that this suit was filed within the proper time.”

II.

Error is assigned to the action of the trial court in refusing to peremptorily direct a verdict for defendant upon the ground that the deceased was shown to have been guilty of such contributory negligence as to bar a recovery herein.

There is no dispute as to defendant's negligence in the premises. It fully appears that defendant's vicepresident and general manager, in charge of the quarry, knew that this cable was in bad condition; that there was a weak spot therein where a strand or strands of the wire composing the cable had been broken; and a new cable had been ordered to take the place of this old one. The evidence is that the new cable arrived a few minutes after the casualty. It also appears that the weak spot was about twenty feet from the drum upon which the cable was wound when lifting the boxes out of the quarry, and that consequently after a few coils of the cable had been wound upon the drum there was no danger from this weak spot. Although the old cable was thus defective, it appears that the manager, after examining it, was of the opinion that it would hold for the time being, and hence it was used awaiting the arrival of the new cable.